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GROUNDWATER POLLUTION AND ITS LEGAL IMPLICATIONS

Introduction

Contamination of groundwater is currently one of the most pressing global issues. Groundwater contamination is a major problem in developing countries, owing to poor sanitation and high population growth rates. Groundwater pollution in rural parts of industrialized countries is primarily related to fertilization, the use of pesticides and herbicides, and improper irrigation habits in terms of groundwater pumping and water volumes utilized for irrigation. Groundwater pollution is ascribed to a variety of species (both chemical pollutants and microbes) resulting from urban development, as well as home and industrial wastes, in industrialized countries’ urban regions.

Groundwater is viewed differently in different legal systems. How groundwater is defined is crucial in groundwater law. A legal definition that is too narrow can limit the law’s reach, putting crucial resources beyond its control. An overly broad definition could make enforcing the legislation more difficult if it means that approval is necessary for activities that harm resources that aren’t in danger of depletion or contamination. Groundwater is becoming a very important source of fresh water in India, with groundwater supplying roughly 60% of irrigated agriculture and more than 80% of drinking water.  Water quality and quantity have deteriorated as a result of the exponential increase in groundwater extraction over the last few decades. These events highlight the necessity for a legal framework that regulates groundwater use and protects aquifers. This is especially important because India’s groundwater use is currently governed in a patchwork or rudimentary manner. One of the major elements that have permitted indiscriminate groundwater use is a lack of adequate control.

Groundwater Conditions and Laws in the International arena

It’s easy to ignore the importance of groundwater as a source of water. In arid or semi-arid climates, groundwater is regarded to be more vital than surface water, whereas, in humid climates, surface water is thought to be more important. Groundwater and surface water usage inventories, on the other hand, demonstrate groundwater’s global importance. The proximity to where water is needed, its remarkable natural quality, and its relatively low development capital cost are all factors. Surface water development is typically more difficult to achieve in phases to keep up with growing demand than groundwater development.  As a result, many of Europe’s main cities are reliant on groundwater. Many millions of people in rural areas rely on groundwater, which is used by the bulk of larger cities in Africa and Asia. For many more people, particularly in Sub-Saharan Africa, who do not yet have access to any type of improved source, untreated groundwater from protected wells with handpumps is likely to be their best option for many years.

Aquifer riparians and the international community have paid more attention to transboundary aquifers in recent years as communities and governments realized the value of these shared freshwater resources. Aquifer riparian’s rights to a transboundary aquifer, as well as the duties that these nations may owe to other aquifer riparians, are all being disputed. As a result, the United Nations International Law Commission (UNILC)[1] decided in 2002 to continue its work on “shared natural resources,” focusing on transboundary aquifers, building on previous work that resulted in the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses[2]. Through its ISARM initiative, the UNESCO-IHP mobilized hydrogeologists, water resource managers, water law specialists, and groundwater administrators to give advisory support to the UNILC as part of this effort. The UNESCO-IHP has strengthened its global study on groundwater resources, with a particular focus on developing recommendations and frameworks for aquifer protection and sensible usage.

Groundwater related Laws in India

There appears to be no unifying law controlling groundwater regulation. The Indian Easement Act of 1882[3] is a British-era law that grants landowners the right to “collect and dispose of” of all water beneath their land within their bounds. Because water is on the state list in the 7th schedule of the constitution, it is their responsibility to administer and manage it. The Environment Protection Act of 1986[4], on the other hand, gives the Central Ground Water Authority the authority to issue orders to states. To address these concerns, the central government has been urging states to adopt new groundwater laws since 1970, publishing’ model’ groundwater laws, the most recent of which was issued in 2016. A Model Bill is nothing more than a set of principles that states can use to design their groundwater legislation. Another Model Bill, the Groundwater (Sustainable Management) Bill of 2017[5], was drafted with decentralization of groundwater control in mind. Water is now recognized as a public trust in the draft plan. Water security measures and groundwater protection zones are also included. The central government, on the other hand, can only support state governments because the Indian Constitution gives state governments the right to pass laws governing water management. The Ministry of Water Resources, River Development, and Ganga Rejuvenation of the central government are in charge of water conservation and management in the country. The different state governments have their groundwater management and conservation acts like the Andhra Pradesh, Rajasthan, etc.

There has not been much data available related to groundwater contamination in India most probably due to the lack of legal statutes on it. One case available regarding groundwater and related issues is M.C. Mehta v. Union of India,1996[6] also known as the Groundwater case. The writ petition was brought by counsel M.C. Mehta in light of the country’s dwindling groundwater levels. Mr. Mehta drew up an organizational model that suggested the Central Groundwater Board open offices across the country. The Central Government should consider issuing a notification under Section 3(3) of the Act designating the Board as an Authority, according to the advice. The Ministry of Environment and Forestry was directed to create the Central Groundwater Board as an Authority under Section 3(3)[7] of the Act. The Authority so created shall have all of the functions granted on it by the Act for groundwater management and development regulation and control. In India, the legal framework regulating groundwater is currently constrained by two major factors. For starters, it’s one of the few systems in the world in which groundwater rights aren’t technically vested in the government. Second, rather than the Centre, individual states have the authority to legislate on water-related matters.

Conclusion

The demand for the world’s available groundwater resources necessitates the establishment of robust, scientifically based rules that govern usage and abuse. According to the growing body of groundwater governance theory, legal frameworks are critical for effective governance and the transformation of policy decisions into rights and obligations (Mechlem, 2012). Accountability also necessitates a legal framework with clearly defined rights, obligations, and responsibilities. Formal groundwater legislation can improve governance efficiency, but it must be based on a multi-step process involving a variety of actors and taking place at many levels. The approach should begin with the development of a non-binding policy that is informed by national and international principles and best practices and then customized to a national or even local environment as needed. Depending on the current level of legislation, consultation with the general public, or at the very least with interested authorities and organizations, may be required already at this point.

Author(s) Name: Preeti (National Law University, Delhi)

References:

[1] United Nations International Law Commission, 1947, Article-13(1) of the Charter of UN

[2] UN Convention on the Law of the Non-navigational Uses of International Watercourses, 1997

[3] The Indian Easements Act, 1882, No.- 05, Acts of Parliament, 1882 (India)

[4] The Environment (Protection) Act, 1986, No.- 29, Acts of Parliament, 1986

[5] Model Groundwater (Sustainable Management) Bill, 2017, Bill no.-83 of 2017

[6] M.C. Mehta v. Union of India,1996 SCC (4) 750

[7] The Environment (Protection) Act, 1986, Section-3(3)